MIDRAND, Gauteng — The Constitutional Court has officially struck down the Public Procurement Act, declaring the major piece of legislation unconstitutional and invalid in its entirety. The apex court found that Parliament failed to properly facilitate meaningful public participation during the law-making process, dealing a significant blow to the modernization of the country’s public procurement system.
At the center of the landmark case was Chapter Four of the Act, which deals with preferential procurement and measures aimed at advancing previously disadvantaged bidders. While the bill was originally introduced to consolidate the country’s fragmented procurement laws into a single framework, significant changes were made to this chapter as it moved through Parliament. The court concluded that these material changes introduced new mechanisms and complex implications that triggered the need for another round of meaningful public participation, which was never provided.
Prof. Geo Quinot, Director of the African Procurement Law Unit at the University of Stellenbosch, described the ruling as a profound indictment on Parliament’s legislative process. Quinot clarified that the failure lies squarely with Parliament, not the National Treasury, which originally sponsored and brought the bill forward. He expressed deep disappointment over the decision, noting that the Act had a long legislative history spanning nearly eight years before its assent, with the original draft bill published just weeks before the first COVID-19 lockdown.
Highlighting the procedural flaws, Prof. Quinot revealed that stakeholders were given inadequate time to respond to critical legislative changes. In one instance, participants were given only four hours to make submissions after a key material change was made to the bill. In another, stakeholders were afforded merely two minutes to make their case. Furthermore, while over a thousand pages of public submissions were received, Parliament’s own processes recorded that not all comments could be considered due to time constraints. The court found no evidence that the full body of submissions was properly evaluated or that the views presented to lawmakers adequately reflected the public input received.
The urgency to pass the legislation appeared to stem from intense political pressure during the last three months of the previous parliament, ahead of a new parliamentary term. Prof. Quinot pointed out a staggering detail regarding the legislative oversight: when the bill returned to the National Assembly for its final vote, lawmakers spent a total of just 15 minutes debating a statute that governs a trillion rand of annual public spending.
The Constitutional Court emphasized that while Parliament has discretion over how it conducts public participation, this discretion is not unlimited. The public must be given a reasonable opportunity to understand the issues, and their participation must be genuinely capable of influencing the final decision. With the Act now invalidated and legal costs following the result, the government faces the complex legal and practical consequences of resetting the legislative clock.
Despite the setback to procurement reform, legal advocates view the judgment as a vital victory for democratic principles. Prof. Quinot noted that while stakeholders had previously attempted to engage the National Minister of Finance and the President to resolve constitutional concerns around a negotiating table, the court’s intervention was ultimately necessary. The ruling reinforces that public participation must be genuine and meaningful, especially when legislation carries far-reaching consequences for government operations, businesses, and those seeking opportunities in the public procurement sector.
